As organizations gear up for impending COVID-19 vaccinations, preparations should include creating a legal strategy—specifically on whether to mandate employee vaccinations.
Workplace Wellness Insider consulted with a nationally recognized employment lawyer, Brian Weinthal, about the legal implications.
Weinthal, a partner at the Chicago firm of Burke, Warren, MacKay & Serritella, recommends that organizations encourage their workforces to get vaccinated for now, but not to mandate it. The U.S. Equal Employment Opportunity Commission hasn’t yet issued specific guidance on vaccinations, but in March, it ruled that organizations can mandate flu vaccines for their employees.
“If you have the legal right to require and compel one, you most likely have the legal right to require the other,” Weinthal says. “For the moment, I’m advocating that employers should advise their people to get vaccinated, but a mandate is too strong at this time.”
Weinthal says the level of uncertainty around the vaccine is what’s driving his recommendation. There are three major objections, he says.
The first that if this vaccine produces some kind of adverse consequence, then an employee could refuse, saying that under Occupational Safety and Health Administration regulations, employers can’t force employees to do something that would have a dire impact.
The second is that under Title VII of the 1964 Civil Rights Act, employees could decline to take the vaccine based on a legitimately held religious belief. Weinthal says that courts have typically offered little deference on this point—allowing such claims under Title VII only if the impact on the employer is de minimis.
And the third potential objection is under the 1990 Americans With Disabilities Act, where an employee can claim an undue hardship.
“Ultimately, there is a lot of precedent in the working world for companies to require employees to get vaccines,” Weinthal says. “This whole issue now is unique, though. For the first time employers not in fields like medicine have to decide what they want to do. The medical industries have been doing this for a long time.”
A fourth potential objection is an unknown—there may be longer-term effects from the vaccine. “If we find out there are adverse effects, some employees could bring a worker’s compensation claim,” Weinthal says. “That’s a risk that employers need to be thinking about. That’s why they should encourage and not require vaccination at this point.”
In terms of implementing a policy, whether it’s a mandate or an advisory, Weinthal says the process should be cleared through the organization’s lawyer and established as an official written workplace policy, published in an employee handbook.
“In my mind the best policy is to watch as the vaccine becomes available, wait and see what other companies do to roll this out, and gauge the experiences of companies that do have mandatory policies,” he says. “I can tell you if you watch and see what others do first, that will be the best policy. It might be a few weeks, it might be a month or more.”